Privacy Issues in the Workplace

2. H EALTH I NSURANCE P ORTABILITY AND A CCOUNTABILITY A CT (HIPAA) The Department of Human and Health Services (DHHS) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) 135 enacted regulations protecting medical information. The federal regulations, entitled Standards for Privacy of Individuality Identifiable Health Information (Privacy Rule), protect individually identifiable health information of patients and, in some cases, employees. In particular, the Privacy Rule imposes standards regarding the rights of individuals who are the subjects of individually identifiable health information. The Privacy Rule also contains standards regarding the authorized and required uses and disclosures of this information by covered entities, and imposes several administrative burdens and onerous penalties for non-compliance. 3. T HE F AIR E MPLOYMENT AND H OUSING A CT (FEHA) The Fair Employment and Housing Act (FEHA), California Government Code sections 12900, et seq., generally prohibits employment discrimination on the basis of, among other things, an employee’s physical/mental disability or medical condition. The FEHA is relevant in the context of a discussion of the confidentiality of medical records because it restricts the ability of employers to inquire about the medical condition and medical history of prospective and current employees. A violation constitutes an unlawful employment practice and may give rise to liability. 136 4. T HE A MERICANS WITH D ISABILITIES A CT (ADA) The Americans with Disabilities Act (ADA), 42 U.S.C. sections 12101- 12213, is the federal counterpart to the FEHA. Like the FEHA, it prohibits employment discrimination on the basis of a physical or mental disability. And, like the FEHA, it restricts the ability of employers to require prospective and current employees to undergo physical examinations as well as to inquire into their medical histories. 5. T HE C ALIFORNIA F AMILY R IGHTS A CT (CFRA) The California Family Rights Act (CFRA), Government Code section 12945.2, requires a covered public employer to permit eligible employees to take a leave of absence of up to 12 weeks in a 12-month period for, among other things, the serious health condition of the employee or the employee’s spouse, domestic partner, child or parent. Under certain circumstances, the CFRA allows an employer to require an employee to produce medical certification of the serious health condition entitling the employee to leave as well as certification that an employee is capable of returning to work. The CFRA also contains provisions for maintaining the confidentiality of medical information.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 47